The country is facing an unprecedented situation of an electoral commission without a team as the terms of the chairperson and two commissioners end, while four others are facing a tribunal.
Independent Electoral and Boundaries Commission (IEBC) Vice Chairperson Juliana Cherera and commissioner Justus Nyang’aya, who are part of a quartet facing the tribunal, resigned last week.
Cherera resigned on Monday while Nyang’aya quit last Friday just hours after President William Ruto suspended them and named a tribunal to investigate them following four petitions seeking their ouster.
The four are accused of gross misconduct, violation of the Constitution and abuse of office during the August 9 General Election.
The tribunal headed by Justice Aggrey Muchelule is set to begin its sittings on Friday and has the power to recommend the commissioners’ sacking or full reinstatement.
While the jury is out on whether the two remaining commissioners Francis Wanderi and Irene Masit will remain in their positions or be sacked should they be found guilty, there are concerns about composition of IEBC with Chairperson Wafula Chebukati and commissioners Boya Molu and Abdi Guliye set to leave office in January when their terms end.
The trio leave office after serving a term of six years and their positions have already been declared vacant.
Should the tribunal call for the sacking of Masit and Wanderi, IEBC will have no commissioners.
Joshua Changwony, a director at the Constitution and Reform Education Consortium (Creco), said the country would be in a constitutional crisis in the event this happens.
“You can imagine the absence of commissioners and the role that they play in the IEBC so this is most likely to put the country into a constitutional crisis,” he said.
The electoral commission comprises seven commissioners and a secretariat headed by the chief executive officer. The secretariat draws its mandate from the commission.
“Because the tenure of the three commissioners, including the chairperson, is coming to an end the Secretariat will be in limbo because they entirely depend on the commissioners for policy guidance and the discharge of their duties as provided for in the Constitution,” Mr Changwony said.
On December 2, via a Special Gazette Notice, President Ruto suspended the four commissioners and formed a nine-member tribunal after the National Assembly adopted a report of the Justice and Legal Affairs Committee.
Aside from Justice Muchelule other members of the tribunal are Carolyne Kamende Daudi, Mathew Njaramba Nyabena, and Col (Rtd) Saeed Khamis while Kibet Kirui Emmanuel and Irene Tunta Nchoe will be the joint secretaries, and Peter Munge Murage as the lead counsel, assisted by Zamzam Abdi Abib.
The commissioners suspension means that they will not be allowed to perform any duties at the commission and would only be paid half of their monthly salaries.
The four disputed the August 9 presidential election results announced by Chebukati and accused him of allegedly altering the results in favour of President Ruto.